Citation Nr: 1120794
Decision Date: 05/27/11 Archive Date: 06/06/11
DOCKET NO. 07-37 859 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to service connection for a neck disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Johnson, Counsel
INTRODUCTION
The Veteran had active service from March 1993 to October 1994.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
The Veteran testified at an RO hearing held in September 2007. He also testified before the undersigned Veterans Law Judge in July 2009. Transcripts of those hearings are of record.
FINDING OF FACT
The preponderance of the evidence shows that the Veteran's cervical spine disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin.
CONCLUSION OF LAW
A neck disorder was not incurred in or aggravated by service, and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2010).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duties to Notify and Assist
VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in letters sent in November 2006 and December 2006, prior to the initial adjudication of this claim. These letters sent also provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disabilities under consideration, pursuant to the recent holding in Dingess v. Nicholson, 19 Vet App 473 (2006).
The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. The Veteran's service treatment records, and VA and private treatment records have been obtained and he has been provided with appropriate VA examinations in connection with his present claim. He has not indicated there are any additional records that VA should seek to obtain on his behalf. Further, the Veteran was provided hearings related to his present claim and the RO has fully, or at a minimum substantially, complied with the Board's December 2007 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required.
II. Service Connection
The Veteran seeks service connection for a neck disorder.
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).
Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2010). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995).
In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).
The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact- finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).
As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604(Fed. Cir. 1996).
Service treatment records show the Veteran was seen on numerous occasions for complaint and treatment of various disabilities. The service treatment records show that he was treated at a Naval Hospital for a neck and shoulder strain (trapezius muscles) after feeling pain in his left side of his neck and left shoulder/arm while traversing an obstacle course. On physical examination, there was swelling in the back of his neck on the left side and he had limited movement and pain. He was given light duty for 2 days. An ambulance call report sheet indicates that there had been no trauma. Service treatment records are negative for further complaint or treatment related to that injury. An August 1994 separation examination reflects no evidence of a neck disorder and the Veteran's spine was normal.
Post-service VA outpatient treatment records dated between 1985 and 1998, show no complaints or treatment for neck pain. Private treatment records from Dr. Fundaro, a private chiropractor, show the Veteran received physical therapy for an undisclosed condition from January 1996 to March 1996. A transcript of hearing testimony provided by the Veteran in May 1998 reveals that the treatment was for his leg and back only. A nerve conduction study (NCS) in April 1996 was within normal limits. Additional private treatment records from Dr. Lazzara reveal that in December 1999 the Veteran was treated for complaints of right shoulder pain that had been present since the beginning of the year which he believed may have been related to an auto accident that had occurred earlier that year in January 1999. The Veteran further reported that his pain had increased after a fall in October 1999 that required treatment in the emergency department, and then another fall in December 1999 which he believed had further exacerbated his symptoms. He stated that his pain was in the anterior and posterior right shoulder area with radiation into his paracervical area and neck. Dr. Lazzara diagnosed with right biceps tendinitis and probable cervical component following a whiplash injury. Electromyography (EMG) and NCS performed in March 2000 revealed rotator cuff tendonitis and mild chronic right C6-7 radiculitis. Additional private records dated since 2006 show ongoing complaints of neck pain and treatment for C5-6 herniated nucleus pulposus (HNP), right and C6-7 HNP, left.
The Veteran underwent a VA examination in April 2003 during which a VA spine examiner reviewed the claims file, and he was interviewed and physically evaluated. The examiner noted a history of low back pain and right-sided neck pain since the 1990's. The examiner diagnosed the Veteran with cervical strain and opined that the condition was "at least partially service connected" because the problem started in service and later became chronic. At a VA examination in March 2007, another VA examiner provided a diagnosis of degenerative disc disease of the cervical spine with chronic neck pain, and opined that this condition was less likely than not related to his service-connected degenerative disc disease of the lumbar spine. The examiner's rationale was that he was unaware of lumbar spine degenerative disease as an etiology of cervical degenerative disease and the x-ray changes in the lumbar spine are minimal and the Veteran's gait was normal.
At the hearings held in September 2007 and July 2009, the Veteran testified that he was hit on the neck by a fellow Marine during Marine Combat Training (MCT). He stated that he was transferred to light duty for approximately one or two weeks. He reported that he did not receive any further treatment for his neck following that injury because his ankle, leg, and knee caused him greater difficulty and required greater attention. He also stated that he sought treatment from one chiropractor (Dr. Fundaro) shortly being discharged from service. He further testified that after service he did not sustain any trauma to his neck. He stated that in 1999 he was rear-ended in a motor vehicle accident and although he was given more than 40 x-rays for his neck, legs and back these tests were provided only because his son was injured. He maintains that he did not sustain any injury from that accident.
The appeal was remanded in March 2010 to provide the Veteran with another VA examination. The Veteran reported a history of having injured his neck in service. The examiner reviewed the claims file and conducted a physical examination, after which he provided a diagnosis of herniated discs C5-6, C6-7 with mild spinal cord compression and mild canal stenosis. The examiner opined that it is less likely as not that the Veteran's cervical spine disorder was incurred in or was a result of his active duty service. The rationale was that the service treatment records showed only one documented instance of treatment for neck strain in July 1993 without any follow up for continued pain. A VA examination in April 2003 diagnosed cervical strain, but cervical spine x-rays were normal. Also a private surgical consulted in December 1999 documented a fall with radiation of pain from the shoulder to the paracervical area and neck that was diagnosed as probable cervical component following a whiplash injury. As documented by this private orthopedist, the Veteran's neck condition originated from a fall.
After a review of the cumulative evidence in the claims file, the Board finds that service connection for a neck disorder is not warranted. A current neck disability has been established as cervical strain and herniated discs C5-6, C6-7 with mild spinal cord compression and mild canal stenosis. There is also evidence of a neck injury during service. Thus, in order to warrant service connection, the evidence need only show that the Veteran's current neck disability is etiologically related to the neck injury in service, or some other aspect of service. The Board finds, however, that the preponderance of the evidence is not in favor of a nexus.
The Board notes that the records from Dr. Lazzara show that the Veteran's cervical spine condition (shown on a 1999 NCS/EMG as chronic right C6-7 radiculitis) was related to a motor vehicle whiplash injury that occurred in January 1999, several years after service. This private medical opinion is competent and probative, and is against a finding that there is a nexus between the current neck condition and the injury in service.
There are VA opinions both in favor of and against the claim. In Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court held that a claims file review, as it pertains to obtaining an overview of a service member's medical history, is not a requirement for private medical opinions. The relevant focus is on whether the clinician was "informed of the relevant facts" in rendering a medical opinion. Thus, when VA refers to facts obtained from review of the claims file as a basis for crediting one expert opinion over another, it is incumbent upon VA to point out those facts and explain why they were necessary or important in forming the appropriate medical judgment. Certainly, the particular medical information contained in a claims file may have significance to the process of formulating a medically valid and well-reasoned opinion. In sum, in Nieves-Rodriguez, the Court indicated that it is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.
The April 2003 VA examiner opined that the Veteran's current neck disability is "partially" linked to his neck strain in service. However, it appears that the examiner was not aware of, or did not consider, the Veteran's post-service whiplash injury that occurred in 1999 as there is no discussion of that injury in the examination report and opinion. Because the examiner neither cited nor discussed the impact of the post-service injury, the Board finds that this impression is of limited probative value, particularly in light of the fact that the 1999 private treatment records represent the initial post-service complaint of neck pain and diagnosis and treatment of a chronic neck disability.
The Board finds the May 2010 VA opinion against a causal nexus in this case is more probative in light of the fact that the opinion was based on a comprehensive review of the Veteran's history including consideration of relevant facts and was supported by an adequate rationale. Accordingly, the Board attaches the most significant probative value to the May 2010 VA opinion as it appears to be well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the service member. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Similarly, the March 2007 VA examiner opined that the current degenerative disc disease of the cervical spine this condition is not related to the service-connected degenerative disc disease of the lumbar spine. Accordingly, service connection on a secondary basis is not warranted.
The Veteran himself attributes his current neck disorder to his service, but his assertions are outweighed by the probative medical evidence that shows otherwise. Further, to the extent that the Veteran suggests that there has been continuity of symptomatology since his neck injury in service, the Board finds that the record does not support such a contention and further finds that the Veteran's report of continued symptomatology is not credible. There is no evidence of complaint or treatment related to a neck condition in the record until many years after service, and after additional injuries. The passage of many years between service separation and a complaint of neck symptoms and objective medical evidence of a chronic neck condition, along with an intervening post-service injury, weighs against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, at the time of treatment in 1999 for neck and shoulder pain, the Veteran stated that his symptoms had only begun in the beginning of that year after his motor vehicle accident and exacerbated by two additional falls. The Board finds that the statements regarding his neck injury made in the context of contemporaneous treatment in 1999 are more probative than those made for compensation purposes years later. Due to the obvious inconsistencies in the Veteran's statements, the Board finds that his report of a continuity of neck symptomatology after service is not credible. There is no other credible, competent evidence of a nexus between any current neck disorder and service.
In sum, the preponderance of the evidence is against the claim and thus, the applicability of the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The claim is denied.
ORDER
Service connection for a neck disorder is denied.
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STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs